The constitutional debate over Obama’s move against ISIS

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President Barack Obama has ordered United States military forces to make limited strikes against ISIS forces in Iraq. So how is this legal when Obama didn’t pursue similar actions in Syria last year?

The constitutional debate over executive powers, foreign policy, domestic law, international law and congressional approval goes back to the days when President Thomas Jefferson authorized attacks on the Barbary pirates in North Africa.

In the current situation, President Obama said on Thursday night that airstrikes would be used to protect U.S. citizens in Iraq and to prevent a humanitarian crisis involving the alleged mass killings of civilians by the ISIS forces. In addition, American forces would supply food to more than 10,000 people isolated by ISIS military forces.

Last fall, President Obama threatened similar action in Syria’s civil war, but he deferred to Congress for authorization, which didn’t come. In 2011, the President took military action in Libya with NATO without seeking congressional approval.

So as U.S. airstrikes begin against ISIS on Friday, a new debate has started about the constitutional grounds for such actions. As with earlier executive-led limited military actions, the debate seems to focus on two statutes and one direct part of the Constitution.

Article II of the Constitution spells out that “the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states.” Known as the Commander In Chief clause, the age-old arguments are how much power does the President have to order military operations and what are the limits to such power? (The real power to formally declare a war is reserved to Congress.)

After World War II, the United States undertook military actions without a war declaration from Congress. Prior to 1942, there were examples of Presidents using force overseas with and without congressional approval. But after it approved U.S. military action in Vietnam using the Gulf of Tonkin Resolution in 1964, Congress had misgivings as the war in Vietnam came to a conclusion.

In 1973, Congress approved the War Powers Resolution. The act stood against President Richard Nixon’s veto, and it required that in the absence of a declaration of war from Congress, a President must report to Congress within 48 hours of introducing military forces into hostilities and must end the use of such within 60 days unless Congress permits otherwise.

In the ensuing 40 years, most Presidents have ignored parts or all of the War Powers Resolution, considered it illegal or unwarranted.

The other statute in play is the Authorization for Use of Military Force against Iraq Resolution of 2002, also known as the AUMF of 2002. (The first AUMF was passed right after the 9/11 terrorist attacks.)

The AUMF of 2002 gave congressional approval to military action in Iraq. It specifically says, “the President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.”

But in early 2014, the Obama administration said it wanted the AUMF of 2002 repealed by Congress. “The Iraq AUMF is no longer used for any U.S. government activities and we therefore would fully support any move to repeal it,” the White House said months before the ISIS threat became clear in Iraq.

On Friday, the constitutional experts looking the situation believed President Obama would cite his Article II powers under the Constitution, and not the AUMF of 2012.

Jack Goldsmith from the popular Lawfare blog and a former George W. Bush administration official, said, “The larger politics of the 2001 and 2002 AUMFs will likely lead the President to rely on Article II alone.”

Goldsmith also felt that Congress would need to be involved if the military action was extended and a big constitutional test for the Obama administration would be if “the Congress and the nation are comfortable with a President using force in its name under the broad, unilaterally determined parameters of self-defense, or whether it wants more formal and defined input and guidance and limitations from the legislature.”

In the New York Times, Cornell’s Sarah Kreps said the Article II argument would be the one most likely used by the White House, since it recently disavowed the 2002 AUMF.

“This leads to what would be the most likely basis for domestic authorization — the Libya model — where the president relied on his “constitutional authority,” granted under Article II, to use military force,” Kreps said. “While perhaps constitutionally legal, another intervention without Congressional authorization would further cement the growing sense of an unchecked executive branch in decisions about foreign policy.”

Ilya Somin, writing for the Volokh Conspiracy blog on the Washington Post, said that anything more that limited air strikes against ISIS should fall under a war declaration from Congress, and is outside of the President’s constitutional powers.

“Anything more than extremely limited air strikes would be an act of war that requires congressional authorization under the Constitution,” Somin argues. “Although ISIS is a nonstate entity, that does not mean that large-scale military action against it cannot qualify as a war.”

As of Friday, the reaction from two key U.S. Senators wasn’t about the President’s congressional authorization for military action: John McCain and Lindsey Graham wanted more decisive action taken against ISIS.

“The President is right to provide humanitarian relief to the Iraqi civilians stranded on Mount Sinjar and to authorize military strikes against ISIS forces that are threatening them, our Kurdish allies, and our own personnel in northern Iraq. However, these actions are far from sufficient to meet the growing threat that ISIS poses. We need a strategic approach, not just a humanitarian one,” the Senators said in a statement. ““We need to get beyond a policy of half measures. The President needs to devise a comprehensive strategy to degrade ISIS.”

Scott Bomboy is the editor in chief of the National Constitution Center.

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